The Cost of Betrayal: Apple’s Destruction of Android

By John Martellaro

Oct 13th, 2011 4:04 PM EDT

“The more you sweat in peacetime, the less you bleed during war.” — Chinese proverb

Apple is at war against Google’s Android. In any war, you make preparations, marshall your assets, analyze the enemy weaknesses, and recall the mistakes of the past. That’s exactly what Apple is doing. Android may not survive its wounds.

Large, wealthy companies have the ability to explore legal scenarios in detail that would exhaust the efforts of lesser companies. That is to say, a comprehensive understanding of one’s patent position and the intricacies of the implications require a hard working and well funded staff. That’s one reason why big companies get bigger.

For a long time now, Apple’s competitors have perceived Apple as a company that knew how to make nice consumer products, but had been historically unable to defend itself in court. That led to ripoffs, all around the world, by companies who could benefit from copying Apple. Google may have had that cavalier attitude when it decided, with Eric Schmidt sitting on Apple’s board, to get into the phone business, something of a betrayal perceived by Steve Jobs. Putting a stop to that not only means patenting your innovations but having a complete understanding of the provenance of various agreements. That requires preparations for all out war.

A good example of Apple’s attack on Android is a proper and comprehensive legal understanding of all the licences the iPhone has compared to the licences the competition has. What’s emerging from these legal battles is that Apple obtained licenses for the underlying communication technologies or else they bought component parts from suppliers who already had licences which exempted Apple from and action by the original patent holder. Then, Apple overlaid an innovative, multi-touch user interface on top of that. Experience from the BSD licensing terms probably helped.

Another brand new court decision that will help Apple at today’s California hearing was handed by the United States Court of Appeals for the Federal Circuit, which reaffirmed in Bosch v. Pylon that the U.S. Constitution envisioned patents to be exclusionary rights and that patent infringement should in many cases result in injunctions… I saw that Apple’s counsel filed a ‘statement of decision’ to draw the California-based court’s attention to this development.”

Conversely, Samsung seems to be trying to undermine Apple’s basic rights to key IP related to wireless communication technology — their only recourse because they don’t have the portfolio of innovative UI patents Apple does. Samsung has tried to cleverly leverage off certain patents that Apple already has FRAND rights to, or they’ve tried to make it look like Apple hasn’t licensed key IP at all when, in fact, Apple previously went through a third party, dotted its “i’s” and crossed its “t’s”.

Samsung in the Crosshairs

A current example of that is how Apple is countering Samsung’s countersuit regarding certain wireless 3G patents. It appears that Apple’s use of Qualcomm and Infineon 3G chips has been lawful because Qualcomm and Infineon already had licensed the technology from Samsung. For Samsung to now go after Apple isn’t going to work — assuming Apple’s attorneys are astute enough to draw all this to the attention of the courts. They are, and they have.

An attorney who follows these matters along with TMO, summed it up as follows:

If Samsung licensed its 3G Intellectual Property (IP) to Qualcomm without restriction on Qualcomm’s right to sale chip containing that 3G IP to downstream users, such as Apple, then Samsung’s patent infringement claims based on its 3G technology will almost certainly be barred by the Exhaustion Doctrines…

So, if Qualcomm has the right pursuant to its license with Samsung to sell chips containing Samsung’s 3G IP and if the only reasonable use and the primary purpose of Qualcomm’s chips is to provide 3G connectivity in computing devices, Apple exhaustion defense will destroy Samsung’s 3G patent claims.

In the alternative, Apple is also alleging that Samsung infringement claims are invalid, because Samsung has not offered FRAND terms to Apple for its 3G IP.”

This is getting rather technical, but the point I’m trying to make is that Apple’s attorneys are doing a very good job of both defending Apple’s high level UI patents while also destroying the arguments of those who are trying to counter by saying Apple hasn’t properly licensed the low level wireless patents.

Apple, as it has grown, has made some serious preparations for war.

Developed a great portfolio of patents to protect its innovation with iOS.

Developed a first class legal staff that’s well funded.

Come to understand the intricate details of communication patents and the strategic weaknesses of the opposing legal teams.

Come to understand the different patent laws in different countries.

Come to understand just how Android infringes on the iOS UI in a manner that Google hadn’t completely thought out or prepared for.

Struck considerable fear in those who thought that Android would be an easy path to successful competition with Apple.

What looks like juvenile, pugilistic legal shenanigans by Apple is, in fact, a well orchestrated war to destroy Android and 1) drive Samsung and HTC into the arms of Microsoft — where they are protected, but will pay profit killing fees, 2) or else waste time to spend huge sums building their own mobile OS, and 3) completely undermine and discredit Google’s purchase of Motorola. In the end, Google may have blown US$12.5B and be stuck with a hardware company that has no viable mobile OS.